Court of Appeal for Ontario

Date: December 6, 2017 Docket: C60730

Judges: Strathy C.J.O., Doherty and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Philip Melville Moore Appellant

Counsel

Christopher Hicks and Jessica Zita, for the appellant

Karen Papadopoulos, for the respondent

Heard

October 6, 2017

Subject Matter

CRIMINAL LAW – Vetrovec warning – W.(D). instruction – Instruction on common purpose – Proper scope of re-examination – Parole ineligibility.

Appeal Information

On appeal from the conviction entered by Justice Gary W. Tranmer of the Superior Court of Justice, sitting with a jury, on June 12, 2013, and from the sentence imposed on September 10, 2013.

Decision

Trotter J.A.:

A. Introduction

[1] The appellant appeals his conviction for second degree murder. The offence occurred during a home invasion robbery of a drug dealer, James ("Jay") Richards. Richards was slashed across the face with a knife and stabbed in the neck, severing an artery and causing him to bleed to death. The trial judge imposed the mandatory life sentence, with no eligibility for parole for 22 years.

[2] Before trial, the appellant's accomplice, Nathan Thomas ("Thomas"), pleaded guilty to manslaughter and received a ten-year sentence. He testified against the appellant. The central issues at trial were whether the appellant was one of the two men involved in the robbery and, if so, whether he was the killer.

[3] The appellant appeals his convictions on four grounds, largely focused on the trial judge's final instructions to the jury, to which no objection was made at the time. In two instances, the appellant's counsel asked that the trial judge not give the instruction that he now says was required. The appellant also appeals sentence, contending that the parole ineligibility period should be reduced.

[4] For the reasons that follow, I would dismiss both appeals.

B. Factual Background

[5] The Crown advanced a strong case against the appellant, relying heavily on the evidence of Thomas. Other evidence (testimonial and forensic) confirmed Thomas' evidence that the two men planned the robbery and the appellant stabbed Richards to death.

[6] The evidence showed that, armed with knives, and wearing dark clothes and hats, the appellant and Thomas obtained access to Richards' apartment with the assistance of Brad Scott ("Scott"), a customer of Richards. Scott let the two men into the apartment building through the rear door. Telephone records revealed three telephone calls between the appellant and Scott on the night before the killing, and one immediately before entry into the building.

[7] Independent witnesses saw two men in dark clothes standing at the back of the building and then entering through the rear door.

[8] Once inside the apartment, the appellant and Thomas confronted Richards and his wife, Melissa Guyea ("Guyea"). A struggle ensued during which the victim was slashed and stabbed. He rapidly bled to death.

[9] The appellant and Thomas fled the apartment, taking a coffee cup containing $150 with them. They left the building through the rear door. The same two independent witnesses saw them leave the building and crawl under a fence. One observed that one of the men was no longer wearing a hat. A baseball hat, with the appellant's DNA on the inside, was found in Richards' apartment. Richards' blood was also found on the hat.

[10] The appellant and Thomas went to the nearby house of Alison Badour ("Badour"), a friend of Thomas. Richards' blood was found on the back door of Badour's house.

[11] One of the people present in Badour's house, Michael Burdett ("Burdett"), testified that the appellant had confessed to killing someone, cutting his throat and stabbing him. Burdett said that the appellant threatened to kill him if he said anything. The appellant instructed Burdett to get rid of their clothes and knives.

[12] Phone records revealed four calls between Badour and the appellant's girlfriend, Jen Jonassen ("Jonassen"), after the killing. Jonassen came to Badour's house with a change of clothes for the appellant.

[13] The defence called no evidence.

C. Analysis

(1) Introduction

[14] Virtually every ground of appeal advanced by counsel for the appellant begins with an outright repudiation of the considered position taken by defence counsel at trial. There is no suggestion that the appellant did not receive effective representation at trial. However, appellate counsel suggests that we should ignore counsel's tactical decisions because they were, according to them, wrong in law.

[15] In my view, none of the grounds advanced by the appellant can succeed. All attract the very cautious approach required when appellate counsel seeks to challenge rulings or decisions made by the trial judge that were predicated in large measure on the positions taken by defence counsel at trial: see R. v. Austin, 214 C.C.C. (3d) 38, at para. 14; and R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, at para. 42. As Doherty J.A. said in R. v. Kimberley, 56 O.R. (3d) 18, at para. 56:

While appellate counsel are not locked into positions taken on behalf of their clients at trial, appeals cannot be conducted without any regard to the conduct of the trial. To permit counsel to advance a position which was not only not put forward at trial, but which is a direct contradiction of the position advanced at trial, would be to make a mockery of the process.

In this case, there was a rational basis for the positions taken by defence counsel at trial.

(2) The Failure to Give a Vetrovec Warning

[16] The witness Thomas, an accomplice, was an unsavoury witness by any definition. Burdett, a self-described "drunk" and "druggie", perhaps an accessory after the fact, was also an unsavoury witness. Both men had previous criminal records, and both had lied to the police during the investigation of this case.

[17] The trial judge did not give a Vetrovec warning with respect to either witness. He planned to. He included the "standard instruction" in his draft charge, provided to trial counsel during the pre-charge conference. However, the trial judge removed it at the specific request of defence counsel.

[18] During an exchange with the trial judge, it is apparent that defence counsel was aware that, along with a Vetrovec caution, came a requirement that the trial judge outline at least some of the evidence that potentially confirmed the testimony of Thomas and Burdett: see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 46. As the trial judge said: "If I do the Vetrovec, I might end up having to do it twice – which you might not want, right?" Defence counsel responded, "Yeah. No. I'm definitely not seeking a Vetrovec warning when it comes to Mr. Thomas." Shortly afterwards, she came to the same conclusion about Burdett.

[19] There was a pile of confirmatory evidence in this case, including DNA evidence, telephone records, evidence of persons who saw two men going to and coming from the apartment, and the evidence of Jonassen. Moreover, the evidence of Thomas and Burdett was capable of confirming the evidence of each other: see R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 67.

[20] Whether the evidence of a Crown witness should be the subject of a Vetrovec caution is in the discretion of the trial judge: see R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 60. The trial judge is best positioned to balance the need for a caution, having regard to the evidence, the manner in which it has unfolded in the course of the trial, and the ability of the jury to assess the credibility of the witnesses and the reliability of their evidence. For this reason, Watt J.A. observed in Carroll, at para. 67: "[A]s a general rule, a trial judge's discretion whether to include a Vetrovec caution in final instructions is to be accorded wide latitude and substantial deference on appellate review".

[21] In considering whether a Vetrovec caution is required, the absence of an objection to the charge that does not contain one leads to an inference that the approach employed by the trial judge was appropriate from the perspective of the accused. In R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, Sharpe J.A. said the following, at para. 53:

In his charge, the trial judge canvassed with the jury the basis for the attack on the credibility of the complainants. The trial judge held a pre-charge conference to afford counsel the opportunity to comment on his proposed charge. The appellant's trial counsel did not object to the manner in which the trial judge proposed to deal with the evidence of the complainants nor did he request a Vetrovec warning. Although not fatal on its own, the absence of any objection leads to an inference that the language employed by the trial judge was appropriate from the perspective of the accused. [Citations omitted; emphasis added.]

[22] This principle must apply with at least equal vigour when defence counsel requests, ahead of time, that a Vetrovec caution not be given for tactical reasons – namely, to prevent the recitation of evidence that confirms the evidence of the Vetrovec witness: see R. v. Moffit, 2015 ONCA 412, 338 O.A.C. 144, at para. 78; and R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 17.

[23] Both Crown and defence counsel have an important obligation to assist the trial judge in the preparation of jury instructions: see Khela, at paras. 49 and 50. In this province, the accepted practice is to address contentious matters ahead of time, during a pre-charge conference. This often results in the trial judge producing draft instructions for review by counsel, thereby reducing the need for after-the-fact correction, clarification, or elaboration.

[24] This is what happened in this case. The trial judge produced draft instructions for counsel. Defence counsel had an opportunity to review them and make considered choices about what would best serve the interests of her client. She wanted the Vetrovec instruction removed. The trial judge obliged, and the jury was instructed accordingly.

[25] This case is indistinguishable from R. v. Rafferty, 2016 ONCA 816, 33 C.R. (7th) 39, at paras. 25-32, in which experienced defence counsel asked the trial judge to remove a Vetrovec caution from his charge for the same reason defence counsel did in this case. This court dismissed this ground of appeal, confirming the deferential approach that is required in these circumstances. See also Brooks, at paras. 2 and 18; and R. v. A.W.B., 2015 ONCA 185, 322 C.C.C. (3d) 130, at paras. 40-44.

[26] Clearly, a Vetrovec warning could have been given in this case. However, the decision whether to give one is discretionary. Although there will be cases in which this discretion can only be properly exercised in favour of giving such an instruction, those cases do not turn the issue into a question of law. Hence, it cannot be said that defence counsel at trial was "wrong", as appellate counsel asserts.

[27] The jury was repeatedly alerted to the many problems with the credibility of Thomas and Burdett. The defence position – that these witnesses could not be believed – was emphatically stated in counsel's closing address. The trial judge thoroughly outlined the shortcomings in their evidence in his final instructions. And while there was no "clear and explicit" caution (see R. v. Sauvé, 182 C.C.C. (3d) 321, at para. 210) about the dangers inherent in relying on this evidence, nor was there any formal review of the confirmatory evidence.

[28] I would dismiss this ground of appeal.

(3) The Failure to Give a W.(D.) Instruction

[29] Once again, appellate counsel argues for reversible non-direction because the trial judge did not give an instruction that defence counsel at trial expressly asked the trial judge not to give – the W.(D.) instruction. Defence counsel expressed the concern that a W.(D.) instruction would highlight for the jury that the defence called no evidence.

[30] There is no legal obligation on a trial judge to recite the language in W.(D.): see R. v. Dayes, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para. 54; and R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267, at paras. 90-91. There is, however, a legal obligation to properly instruct the jury on reasonable doubt. In many situations, a proper instruction on reasonable doubt must include a description of the middle ground described in W.(D.), that is, the possibility of a doubt based on exculpatory evidence where that evidence, while not believed, is not rejected. The exculpatory evidence may arise from the testimony of the accused, other defence-led evidence, or evidence favourable to the defence led as part of the Crown's case: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 105 and 114.

[31] In this case, the jury was properly and repeatedly instructed on the burden of proof and the Crown's obligation to prove its case beyond a reasonable doubt. The burden was effectively related to specific issues and the essential elements of the offence.

[32] The rationale for giving a W.(D.) instruction was absent in this case. There were no conflicting issues of credibility that the jury needed to resolve. Indeed, there was no evidentiary feature of this case that would attract the need for such an instruction.

[33] This is not a case like R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, relied upon by the appellant, in which there was exculpatory identification evidence – identification evidence that was inconsistent with the Crown's claim that the accused committed the offence. In Bucik, it was important for the jury to appreciate that the exculpatory identification evidence could leave the jury with a doubt, even if the jury did not necessarily accept that evidence.

[34] In this case, the only piece of "exculpatory" evidence that the appellant points to relates to eyeglasses seized from him upon arrest. Forensic examination revealed no traces of blood on the glasses. At trial, defence counsel suggested this was significant because the pathologist testified that there would have been "arterial spurts" from Richards' stab wound to his throat. The implication was that, had the appellant been the attacker, there would have been blood on his glasses. However, none of the Crown eyewitnesses testified to seeing a man with glasses.

[35] Furthermore, the appellant did not testify or call any other evidence at trial. Consequently, there was no evidence that the appellant habitually wore his glasses, or that he wore them on the afternoon of the murder. Defence counsel was alive to the problems that this created for its theory about the glasses. In this context, she said: "I had a difficult time foreseeing how it [the W.(D.) instruction] could be drafted, such that it would do Mr. Moore benefit, without highlighting the fact that we didn't call any evidence…. So, I'm not asking for that."

[36] Defence counsel provided a reasoned basis for requesting that the trial judge remove this instruction from his final charge. Defence counsel's position was not "wrong", as the appellant suggests. The trial judge's decision to omit this instruction does not reflect any error.

[37] I would dismiss this ground of appeal.

(4) The Instruction on Common Purpose (s. 21(2))

[38] The Crown's primary theory at trial was that the appellant had stabbed the victim. Towards the end of the trial, after it was suggested during the cross-examination of Thomas that he stabbed Richards, the Crown requested that the trial judge instruct the jury on s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, based on this alternative theory. The matter was discussed at length between counsel and the trial judge. At no point did defence counsel object to this instruction. To the contrary, in her closing address, defence counsel leveraged the Crown's alternative approach to liability by suggesting that the Crown had no faith in its main witness, Thomas, who had pointed the finger at the appellant.

[39] The appellant argues that the trial judge erred by instructing the jury on s. 21(2) because: (1) there was no evidentiary basis for this instruction; and (2) the Crown's alternative theory called into question the veracity of its own witness. The appellant also argues that the trial judge's instructions contained legal errors.

[40] There was an evidentiary basis for liability predicated on s. 21(2). The evidence showed that the appellant and Thomas planned to rob Richards. They went to his apartment, both armed with knives. Expert evidence established that Richards' wounds could have been caused by two separate knives. The appellant and Thomas immediately fled from the scene, taking Richards' money with them. They were seen together afterwards.

[41] Importantly, there was an evidentiary foundation for the alternative theory in the testimony of Richards' wife, Guyea. While she did not see who stabbed Richards, according to her testimony, the person in the most likely position to have stabbed him was Thomas. Guyea's evidence provided the evidentiary basis upon which the jury could find that Thomas, and not the appellant, inflicted one or both of the knife wounds. As defence counsel said in her closing address: "I urge you to believe Miss Guyea over Nathan Thomas. I urge you to find that Nathan Thomas was the one by the door who wielded a knife and slashed and fatally stabbed James Richards."

[42] This is not a case like R. v. Walker, 90 C.C.C. (3d) 144, in which Crown counsel not only repudiated its own witness, but also invited the jury to accept, as factual, the converse of what the witness had said. In this case, if the jury rejected Thomas' claim that the appellant was the killer, that rejection, standing alone, could not establish that Thomas was the killer. But that is not what the Crown invited the jury to do. Here, there was other evidence from Guyea, from which the jury could infer that Thomas was the killer. Because of this evidentiary foundation, the Crown was entitled to repudiate Thomas' evidence on this critical issue, at least as an alternative theory.

[43] This case is remarkably similar to the situation presented in R. v. Portillo, 176 C.C.C. (3d) 467, a case where the evidence established that two brothers acted together in furthering a common unlawful purpose. Doherty J.A. said, at para. 69:

In this case, there was evidence from which the jury could infer that both appellants were present in the deceased's relatively small apartment during an argument that culminated in his death by a means which required some preparation. The jury could also infer that the appellants fled the apartment together. Finally, the jury could infer that the appellants were party to a theft which occurred in the course of the same transaction as the homicide, and that the theft was a motive for the homicide. On this record, there was a basis upon which to leave liability under s. 21(1)(b), s. 21(1)(c) and s. 21(2). [Emphasis added.]

In this case too, there was a basis to instruct the jury on the appellant's liability as an aider (s. 21(1)(b)) and/or abettor (s. 21(1)(c)). However, the Crown did not request this instruction, preferring to press its alternative theory under s. 21(2) alone.

[44] The appellant's submission that the trial judge's instructions on s. 21(2) were legally inaccurate and/or difficult to follow must also be rejected. This portion of the charge was developed in considerable detail over several days of dialogue between the Crown and defence and presented to the trial judge as a package, which he accepted. The instructions were thorough, error-free, and in accordance with previous decisions of this court: see Portillo, at paras. 72-73; R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 63-64; and R. v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at paras. 39-43.

[45] I would reject this ground of appeal.

(5) Improper Re-examination by the Crown

[46] The appellant contends that the Crown exceeded the proper scope of re-examination in its questioning of Thomas and Burdett. I disagree.

(a) Thomas

[47] Thomas and the appellant were jointly charged with killing the victim. They had a joint preliminary inquiry, which took place in November of 2011. During the preliminary inquiry, Thomas entered into a plea arrangement whereby he would plead guilty to manslaughter and receive a sentence of 10 years' imprisonment.

[48] At trial, Thomas was vigorously cross-examined on his version of events. It was suggested that he had fabricated his evidence against the appellant after having had the benefit of hearing all of the evidence at the preliminary inquiry.

[49] The Crown re-examined Thomas on two prior statements, both made approximately 10 months before the plea agreement. In his January 31, 2011 statement, Thomas told the police that the other person involved in the killing lost his hat during the incident. On February 1, 2011, he told the police that the appellant was involved in the murder.

[50] Despite an initial objection to this line of questioning, defence counsel accepted that the prior statements were admissible to rebut an allegation of recent fabrication. Once again, counsel on appeal seeks to second-guess defence counsel at trial, arguing that the cross-examination was a "wholesale attack" on Thomas' evidence and not an allegation of recent fabrication.

[51] I disagree with this narrow interpretation. Although the attack on Thomas' evidence was broad, an important theme pursued during the cross-examination was that Thomas fabricated incriminatory evidence against the appellant because of what he heard at the preliminary inquiry. The two statements that were shown to him in re-examination demonstrated that he implicated the appellant much earlier in the proceedings. Consequently, the re-examination, and the use of the prior statements, was proper: see R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 31-33; and R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[52] In his final instructions, the trial judge properly limited the use of this testimony to rebutting the allegation of recent fabrication. Defence counsel did not object to this aspect of the charge.

(b) Burdett

[53] Burdett was also the subject of vigorous cross-examination, especially as it related to his evidence that the appellant confessed to him, and then threatened to kill him if he ever told anyone. Burdett was challenged on inconsistencies between his trial testimony, his statements to the police, and his preliminary inquiry testimony. This led to the following exchange in re-examination:

Crown: Your recollection about Mr. Moore in the living room, and what he said to you, is that the truth?

Burdett: Yes.

[54] The appellant argues that this re-examination amounted to improper oath helping that caused him prejudice. I disagree. While this single question was unnecessary, unhelpful, and probably should not have been asked, it did not occasion any prejudice. Defence counsel at trial made no objection at the time.

[55] I would also dismiss this ground of appeal.

(6) The Appeal Against Sentence

[56] The appellant was sentenced to life imprisonment without parole eligibility for 22 years. At trial, his counsel suggested a range of 15 to 20 years. The Crown suggested 22 to 25 years. Four members of the jury made no recommendation as to parole; one recommended 15 years; and seven recommended 25 years.

[57] In my view, the sentence was fit, and the appellant has demonstrated no error in principle.

[58] As discussed above, the jury was left with two routes to the appellant's liability – as the perpetrator (s. 21(1)(a)), or as a party (s. 21(2)). Given that the jury's verdict did not clarify this issue, the trial judge made his own determination as to what happened: see R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18; R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59; and Criminal Code, s. 724(2)(b). He was satisfied beyond a reasonable doubt that the appellant was the mastermind behind the entire operation and that he inflicted the knife wounds that killed Richards.

[59] The appellant was 35 years old when he was sentenced. Since the age of 15, he has spent most of his life in custody. The appellant's lengthy criminal record includes convictions for: (a) attempted murder (as a youth) by stabbing the victim nine times; (b) assault causing bodily harm in connection with a home invasion in which the victim was beaten with a baseball bat; and (c) manslaughter (by shooting an unarmed victim), for which he was sentenced to 10 years' imprisonment. The appellant was held in custody on the manslaughter sentence until his warrant expiry date, at which time he was made subject to an order under s. 810.2 of the Criminal Code. It was only 81 days later that he murdered Richards.

[60] In addition to his disturbing criminal record, the appellant has a long history of institutional misconduct, committing dozens upon dozens of infractions. This behaviour continued during his trial. Moreover, psychiatric evidence demonstrated that the appellant is an extremely dangerous individual, at high risk to re-offend in a violent manner.

[61] As the trial judge observed, there were no mitigating factors in this case, not even a genuine expression of remorse. This is illustrated by the appellant's statement made prior to being sentenced, under s. 726 of the Criminal Code. In a presentation characterized by the trial judge as "angry, defiant, belligerent and aggressive", the appellant attacked Richards' character. He ended his remarks by saying:

Some are going around saying that I should rot in hell, and maybe that is so, but when I get there, I'll have my dick out, pissin'. That's all I've got to say.

[62] As severe as the imposed sentence is, it was amply justified in this case: see R. v. Lane, 2008 ONCA 841, 94 O.R. (3d) 177, at paras. 90-94. The trial judge did not err in his consideration of the appellant's personal circumstances.

[63] I would dismiss the appeal against sentence.

D. Conclusion

[64] I would dismiss the appeals from conviction and sentence.

Released: December 6, 2017

"G.T. Trotter J.A."

"I agree. G.R. Strathy C.J.O."

"I agree. Doherty J.A."